Delay in the judicial system is like a cancer, according to Trinidad & Tobago President Anthony Carmona, who yesterday also underscored the importance of restorative justice to help reduce crime.
Addressing the second day of the Commonwealth Magistrates’ and Judges’ Association (CMJA) Conference, being held at the Marriott Hotel, President Carmona, who was a judge when he was called to the presidency, noted that timeliness must be made a priority for all jurisdictions as the cries of delay are not unique to any one corner of the Commonwealth.
He noted that to address the issue of the delivery of justice, some jurisdictions have employed the use of mediation and alternative dispute resolutions in cases which qualify. It is a step in the right direction, he said, both in terms of aiding the efficient disposition of cases and the unburdening of the case load, including for the litigant.
He also emphasised that it is imperative that in promoting the rule of law, judges articulate as well a clear understanding of the law. “Judgments ought to be written in a manner that is easily understood and is relevant to existing norms and mores,” he said.
He pointed out that an integral part of the communication aspect is the issue of public perception, which can be skewed. He advised that a judge does not give interviews on his decisions, even it is the subject of great criticisms. Rather, he said that in such circumstances, the role of the bar association is important in taking up the mantle of communicating to the public the ramifications and meanings of the judgment in circumstances where the judiciary ought not to defend itself.
As a result, he said the relationship between the bench and bar must be encouraged and cultivated although such a relationship is threatened if the bar or law association is perceived as a political association of the executive.
Speaking on restorative justice, the retired judge said it is a matter that is vital to expediting the judiciary’s effectiveness and case load in its effort to comply with the timely administration of justice. He said the juridical input must be sought so that there are both sanctions and relief in the dispensing of criminal matters.
“Restorative justice…has an indelible place in the rule of law,” he said.
There is always a pressing need for judges and magistrates to be informed, if only to remain relevant so that they can secure the application of the rule of law, he later said, while noting that in many areas in determining matters judges are required to be activists and not necessarily slaves to precedents to protect the rule of law.
He explained that restorative justice in the civil and criminal arenas focuses on restoring the human relationships that are damaged or broken as a result of the act committed. If damaged relationships are restored and the offender is not only made fully aware of the damage caused by their actions but is also given the tools as well as the opportunity to address the issues within himself that led to the offending behaviour, the likelihood of a offence being re-committed is drastically reduced, he argued.
“The retributive approach in criminal law continues to fail us in stemming the seemingly endless flow of crime that by extension shakes the [foundation] of the rule of law,” he added, while underscoring that the ideal of restorative justice requires a combination of social engineering and judicial actions even activism. He also stressed that restorative justice can coexist harmoniously to support the rule of law.
Hammering home the point that there is more to the job of a judge than just handing down a decision, Carmona said that there is an expectation that a judge is a pro-active person driving the judicial system.
“The rule of law, therefore, places a personal responsibility on the judge or magistrate to further its principles and objectives,” he noted.
Carmona said there are certain non-negotiable features that must characterise judiciaries throughout the Commonwealth in order to achieve the type of internal management that is required for the protection and the support for the rule of law.
Firstly, he said a judge must be informed and versed in the laws of the land in the court which he/she presides but also must be knowledgeable of laws that may impact the society in which they function. “The evolving nature of the rule of law demands that judgments and decisions of the court be steeped in a type of social and global consciousness,” he said.
Carmona added that guaranteeing the rule of law requires that judicial independence must never be breached.
He noted that a judiciary that is confident in its independence is reflected not only in its decisions but also its approach to decision making. He argued that the way in which the judicial system deals with persons appearing before it often goes a long way in not only reflecting the confidence of the judiciary but encouraging confidence in members of the public towards the judiciary.
“Judicial independence, whether from majority or populace view, whether it is pressure from the other court (court of public opinion) or from fear or favour or financial gain or even from the dictates of political interference, your independence must always be maintained,” he told the participants, who listened with rapt attention.
Important to the protection of the rule of law as well, according to Carmona, is for courts to always be engaged in the required civility and probity informed by its inherent humility and necessary courtesies. “It is this humility that allows a judge to listen and learn,” he said, while adding that the judiciary must support genuine inclusivity and be sensitive to the persons who appear before it.
Carmona also said that the proper propagation of the rule of law requires a judiciary that is intellectually ambitious. He pointed out that a judge on a daily basis is asked to decide questions that affect the society in general but transformational judgment law can only be established where a judge’s ambition remains focused on the pivotal role of the judiciary as the guardian of the constitution.
He added that the judicial system is in itself a national support system that can only effectively function if it is provided with management systems and human resources that allow for production.
“If resources aren’t set, the judiciary is in danger of becoming a façade,” he said, while stressing that the resources and support systems must be properly qualified, trained and exhibit an ethos to work that would allow the judiciary to deliver its constitutional objective.
He also said that international norms have not received the required momentum in the decisions of some Commonwealth jurisdictions and he questioned whether this is so because the judges are uneasy about the impact of their international obligations or the meaning of their human rights provisions. “Are we afraid that such considerations are affected by politics and therefore we avoid the issue that can no longer be avoided?” he questioned.